Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Friday, September 06, 2013

Gravelet-Blondin v. Shelton (9th Cir. - Sept. 6, 2013)

I take particular interest whenever someone new is appointed to the Ninth Circuit. You always wonder what they're going to be like. Will they be smart? Will they be funny? Will they be a leftie? A rightie? Will they feel free to dissent? Will they go their own way?

In short, what's it going to be like living with this person -- in a jurisprudential sense, anyway -- for the next twenty years?

You don't find out much at first. (Similar to dating, I might add.) It takes a while for the new person to percolate through they system. They get confirmed. They move into their chambers. They get assigned to panels. They read the briefs. They participate in oral argument. They spend a fair amount of time researching and writing stuff.

Only then, much later, do you have the opportunity to begin to view their work. Which initially comes out in a trickle.

But, as with some other things, first impressions nonetheless matter. So you try to get a feel for the person based upon what you can see.

There are lots of recent members of the Ninth Circuit for whom this is true. Indeed, for me, anyway, it's been true for nearly all of them over the past quarter-century.

But I nonetheless mention it now in connection with Judge Nguyen. She was appointed last year. Today, she wrote this. Which may perhaps give one a sense of what's to come?

It's an extremely unfortunate situation however you slice it. An elderly man -- Jack -- decides that life may no longer be worth living. He gets in his car, attaches a hose to the exhaust pipe, puts the other end through his car window, gets in the car and starts it.

His family members find out about this and call 911. Officers promptly respond. They've been told had Jack owns a gun and may well have it with him, so they're very careful. They approach the vehicle gingerly and tell Jack to get out. Jack complies, and has his hands at his sides. The police officers tell Jack to show him his hands more clearly, but for whatever reason, Jack doesn't comply. So the police tase the old man. Who then falls to the ground (hard), at which point the officers pile on him to handcuff and restrain him. At some point, for whatever reason, the old man pulls his arms underneath his body. At which point the police tase him again while he's on the ground.

You may be thinking to yourself: "Oh. You're right. That is unfortunate. Maybe even excessive. I bet the opinion's about whether the old man can sue the police for tasing him."

But you'd be wrong. This lawsuit's about a different guy. Donald Gravelet-Blondin. Jack's next-door neighbor.

Don and his wife are watching TV and hear the commotion. So Don goes outside to investigate. Don's in shorts, a t-shirt, and slippers. Clearly just a neighbor, not some gun-wielding nutjob. He sees the old man on the ground, moaning in pain, with the police aggressively on top of him. Concerned for his elderly next-door neighbor, he calls out: "What are you doing to Jack?"

Don's 37 feet away at that point. As Judge Nguyen points out in her opinion, that's "a little more than half the distance between the pitcher's mound and home plate" on a major league baseball diamond.

(To be a bit more accurate, it's actually closer to two-thirds of that distance, rather than halfway. Or, to be even more accurate, 37 feet is pretty much three-quarters of the way from home plate to the mound, but closer to two-thirds of the way to the rubber.)

Oh, there's also Jack's car in between Don and the officers. In short, Don's definitely interested in what's going on, and doesn't seem to be more interested in Jack's welfare than in the police's.

The police promptly see Don and scream at him. One yells: "Stop." The other yells: "Get back." Leave to one side that these instructions are contradictory.

For whatever reason, Don does the former but not the latter (or, if he does the latter, only by one or two steps). Don says he's frozen with fear. Maybe that's true. Or maybe he simply feels entitled to watch the police officers from 37 feet as they sit on top of his elderly next-door neighbor.

Don stands there for fifteen seconds. Judge Nguyen notes that's a pretty substantial period. Saying: "[F]ifteen seconds is a long time to remain motionless when multiple police officers are yelling at you to retreat. (Try counting to fifteen one-thousand out loud, and see for yourself.)"

So what do the officers do? Don doesn't move: He stays 37 feet away. One of the police officers moves towards him during this period. Then one of the officers starts to tell Don that he'll be tased if he doesn't leave. But apparently decides that there's no need to actually finish that sentence. So tases Don in the middle of it.

(Oh, and if you're wondering what the officer's underlying attitude was, immediately after he fires the taser at Don, and Don drops to the ground twitching, the officer says: "[You] want it again?!" Then turning to Don's wife, located a distance away, and telling her: "You're next." Nice.)

Remember that Don hasn't moved. He's 37 feet away. He hasn't committed an aggressive act -- or even moved or spoken -- for 15 seconds. A long time. He's in shorts, a t-shirt and a slipper. He's just standing there. Watching.

Is it okay for the police to tase a bystander in a t-shirt and slippers standing 37 feet away, standing there for 15 seconds watching the police repeatedly tase an old man?

Judge Nguyen says: "Yes." She would hold that the officer is entitled to qualified immunity. Judge Hawkins, by contrast, writes the majority opinion, saying "No."

I'm certain that Judge Nguyen doesn't like it that Don didn't obey the police. My sense, for what it's worth, is that Don (1) didn't much like it that the police were repeatedly tasing his elderly neighbor for seemingly no reason, and (2) felt like the police were abusing their authority when they told him to go away, and so didn't feel the need to comply.

Similarly, I have a very strong sense that the police didn't like -- not one little bit -- that Don was not, in their view, sufficiently deferential. They thought he had an "attitude". Which played no small part in their decision to tase him. As well as their decision to gratuitously threaten another tasing, as well as his wife, thereafter. (It also helps explain why, after tasing him, the police also arrested him for "obstruction of justice," charges that were dropped by the district attorney.)

Let me set the stage one last time. There were five police officers with guns. There was one old man on the ground, moaning, after being repeatedly tased. There was a next-door neighbor in slippers, shorts and a t-shirt 37 feet away. Standing there. Doing absolutely nothing.

Does that situation present a danger to the police sufficient to permit them to tase the guy?

Let's assume for purposes of argument that the police officers -- rather than simply being pissed at the dude (and I think a reasonable jury could easily so conclude) -- were actually worried about their safety. Would such a fear be reasonable? The guy's 37 feet away. Assume that this t-shirt wearing guy all of the sudden decides to bum rush the five officers. My guess is that an average person could close a 37 foot gap in about two seconds. Maybe longer in slippers.

Two seconds is a long time. Take Judge Nguyen's suggestion and count it out. One one thousand. Two one thousand. Do you think that any of the five officers could pull their guns and shoot the guy within that period? Especially if they're already on alert and, perhaps, already have their guns drawn?

Don't forget, by the way, that there's a car between the slipper-wearing neighbor and the officers.

(There's apparently a fairly well-developed body of literature on how long it takes for officers to shoot a charging assailant. As well as a rule well-known to police officers -- the "21-foot" rule -- derived from that literature. Here's a sample. Suffice it to say that even a dude in sneakers who decides to bum rush five guys with guns stands absolutely no chance in hell.)

[Here's a helpful way to think about it. Imagine that the NRA takes over major league baseball. A pitcher beans a batter. The pitcher carries a gun. So does every other member of the infield. What's the chance a batter can "storm the mound" before getting shot and killed? I'd bet not much.]

Judge Nguyen says that the Ninth Circuit's being its classic nutty self and showing insufficient deference to police officers, that the officers here are entitled to immunity, and that no reasonable juror could possibly hold to the contrary.

Maybe this dissent's an outlier. Or maybe it's an indicia of more to come.

Either way, it's an interesting case. Judge Hawkins has one take. Judge Nguyen has another. See which one you find more plausible.